Case :-cv-0-r-rz Document Filed 0// Page of Page ID #: 0 ANDY DOGALI Pro Hac Vice adogali@dogalilaw.com Dogali Law Group, P.A. 0 E. Kennedy Blvd., Suite 00 Tampa, Florida 0 Tel: () 000 Fax: () EUGENE FELDMAN California Bar No. gfeldmanlaw@att.net Eugene Feldman, Attorney at Law, APC Pier Avenue, Suite Hermosa Beach, CA 0 Tel: (0) Fax: (0) Attorneys for Plaintiffs A.L., and through D.L., et al., Plaintiffs, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WALT DISNEY PARKS AND RESORTS U.S., INC., Defendant. / Page Case No.: cv MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR LEAVE TO FILE AMENDMENT TO COMPLAINT Hon. Manuel L. Real Plaintiffs A.L., and others, through undersigned counsel and pursuant to Rule of the Federal Rules of Civil Procedure, the Local Rules of this Court, and applicable law, move to amend their complaint to
Case :-cv-0-r-rz Document Filed 0// Page of Page ID #: 0 include additional new, similarly situated plaintiffs. motion Plaintiffs provide the following memorandum. Page In support of the I. BACKGROUND Plaintiffs bring an extensive complaint which generally asserts that in October of Defendant Walt Disney Parks and Resorts US, Inc. ( Disney ) implemented a new accessibility system, ostensibly for the purpose of accommodating disabled persons in its theme parks. (Doc. ). Plaintiffs allege that while the system, known as Disney's Disability Access Service ("DAS"), might adequately accommodate persons with certain disabilities, it does entirely the opposite for persons with cognitive impairments, such as persons with autism and similar disorders. For persons with cognitive impairments, the DAS has not only made the Disney Parks experience less than equal, it has made it downright awful. The existing Complaint includes Plaintiffs, encompassing families. Specifically, the Plaintiffs include disabled individuals through their guardians, and 0 of the guardians also seek relief in their individual capacities. Nine of the Guardian Plaintiffs are mothers of the Disabled Plaintiffs; one is a grandmother. One of the Guardian Plaintiffs comes to this Court having already been appointed by another court as the plenary legal guardian for her disabled child. For the others, this Court has granted their motions to act as guardian ad litem (Doc.,, 0 ). After the initial Complaint was filed, undersigned counsel received an outpouring of phone calls and emails from victims and their families, similarly situated to the existing Plaintiffs. These communications came from persons who were victims of the same discrimination of which Plaintiffs complain; outrageous refusals to accommodate the needs of certain disabled persons as a result of Disney s DAS, at both the Walt
Case :-cv-0-r-rz Document Filed 0// Page of Page ID #: 0 Disney World Resort in Florida and the Disneyland Resort in California. Most of the victims wanted to offer cheers of support and witness assistance; some were in search of counsel. Ultimately, the undersigned counsel agreed to represent many of them. The existing Plaintiffs now move for leave to add many of the similarly situated victims as Plaintiffs in the present case. The proposed amendment would add plaintiffs to the action, encompassing 0 families. The new plaintiffs would include disabled plaintiffs and family members. A copy of the proposed Amendment to Complaint is attached as Exhibit to this Motion. II. ARGUMENT. Summary of Argument In relevant part, Rule (a)() of the Federal Rules of Civil Procedure, provides, a party may amend its pleading only with the opposing party s written consent or the court s leave. The court should freely give leave when justice so requires. Fed. R. Civ. Pro. (a)() (emphasis added). This policy is to be applied with extreme liberality. Owens v. Kaiser Found. Health Plan, Inc., F.d 0, (th Cir. 0) (quoting Morongo Band of Mission Indians v. Rose, F.d 0, 0 (th Cir. 0)). In determining whether a motion to leave to amend should be granted, Courts consider the following factors, as espoused by the United States Supreme Court in Foman v. Davis, U.S. (): () undue prejudice to the opposing party; () undue delay; () bad faith or dilatory motive; () futility of amendment; and () whether the movant has previously amended a pleading. Id. at ; See Eminence Capital, LLC v. Aspeon, Inc., F.d 0, 0 (th Cir. 0); see also Daniels v. Community Lending, Inc., WL, at * (S.D. Cal. May, ) ( In determining whether to allow an amendment, a court considers Page
Case :-cv-0-r-rz Document Filed 0// Page of Page ID #: 0 whether there is undue delay, bad faith, undue prejudice to the opposing party, or futility of amendment. ) Furthermore: [n]ot all of the factors merit equal weight. As this circuit and others have held, it is the consideration of prejudice to the opposing party that carries the greatest weight Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule (a) in favor of granting leave to amend. Eminence Capital, F.d at 0 (emphasis added). When weighed in the present case, the Foman factors support granting leave to add the new plaintiffs to this action because: the action is in the infantile stages of litigation; Disney faces no undue prejudice; Plaintiffs have not delayed in bringing the proposed amendment; Plaintiffs have not acted with bad faith or dilatory motive; and, Plaintiffs have not previously amended any pleadings in this action. See Mason v. Pepsico, Inc., WL (C.D. Cal. ).. Disney Will Not be Prejudiced According to the Ninth Circuit, while district courts should consider all of the factors delineated above, one factor carries the greatest weight: the consideration of prejudice to the opposing party. Kohler v. Presidio Intern., Inc. WL 00, at * (C.D. Cal. ); See DCD Programs, Ltd. v. Leighton, F.d, (th Cir. ). Prejudice is the touchstone of the inquiry under rule (a). Lone Star Ladies Inv. Club v. Schlotzsky s Inc., F.d, (th Cir. 0); Howey v. United States, F.d, 0 (th Cir. ) (stating that the crucial factor is the resulting prejudice to the opposing party ). Absent prejudice, there exists a presumption under Rule (a) in favor of granting leave to amend. Page
Case :-cv-0-r-rz Document Filed 0// Page of Page ID #: 0 Kohler, WL 00, at * (also stating this presumption exists in the absence of a strong showing of any of the remaining Forman factors. ) Moreover, as the Ninth Circuit has stated, [b]ald assertions of prejudice cannot overcome the strong policy reflected in Rule (a) to facilitate a proper disposition on the merits. Hurn v. Ret. Fund Trust of Plumbing, Heating & Piping Indus. of S. California, F.d, (th Cir. ) (internal citations omitted). Disney would face no undue prejudice were leave to amend granted because this action remains in the infantile stages of litigation. Beyond initial Rule disclosures, there has been no discovery. There have been no substantive motions. In fact, the Joint Report of Early Meeting and Rule (f) Discovery Plan ( Plan ) was filed a mere three days ago, two of which were a weekend. (Doc. ) In this Plan, amendment of the pleadings, including a specific reference to this motion, is addressed. (Doc. ). Plaintiffs explicitly describe the amendment and point out in Section III that the amendment only seeks to add parties without materially altering the general factual allegations. The proposed amendment does not introduce new theories of relief. Those allegations remain unchanged. Additionally, the proposed amendment would not affect this Court s jurisdiction; said jurisdiction would still rely on a question of federal law. U.S.C., et. seq. Supplemental jurisdiction over the new plaintiffs state law causes of action would remain proper in this Court pursuant to U.S.C.. In addition, no prejudice to Disney exists because Disney faces a lawsuit or multiple lawsuits by the new plaintiffs in any event, whether in this lawsuit or a separate one(s). The assumption in inescapable that Disney would in fact prefer that its witnesses give singular depositions in lieu of scattered, multiple ones. In fact, Disney would likely benefit by the Page
Case :-cv-0-r-rz Document Filed 0// Page of Page ID #: 0 creation of one lawsuit rather than two, for the same reason that the Plaintiffs will: the combined action will save resources in a case which is destined to be quite expensive for all concerned. See, Falcon v. Scottsdale Ins. Co., 0 WL (E.D. Wash. 0) (joinder was warranted because, inter alia, the amendment would conserve judicial resources and reduce the risk of inconsistent results).. No Delay Exists Plaintiffs did not delay in bringing this proposed amendment because Plaintiffs were not aware of the existence of the new plaintiffs until after the complaint was filed. See, e.g. E.E.O.C. v. Boeing Co., F.d, (th Cir. ) (relevant to evaluating the delay issue is whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading). Moreover, undersigned counsel needed time to: factually investigate each of the potential claims; confer with each client about retention of counsel; evaluate the viability of each person s claim, and of the viability of the particular actions they might bring; provide recommendations regarding these evaluations to the clients; draft the proposed counts for relief on behalf of each client; confer with each client about the specific draft allegations; identify the appropriate guardian ad litem for each disabled plaintiff; prepare the guardian ad litem petitions for filing immediately upon filing of suit; and, file the instant motion. See Fed. R. Civ. Pro., R., infra. Even if some fractional delay is alleged to have occurred, delay alone is insufficient to justify the denial of a motion requesting leave to amend. DCD Programs, Ltd. v. Leighton, F.d, (th Cir. ). Page
Case :-cv-0-r-rz Document Filed 0// Page of Page ID #: 0. No Bad Faith or Dilatory Motive Exists As stated above, Plaintiffs were unaware of the identities of additional victims of Disney s discrimination until after the Complaint was filed. Immediately upon filing of the complaint, there was an outpouring of similarly situated complainants, many of whom were interested in filing suit against Disney. After, undersigned counsel began a diligent investigation into the allegations of these new plaintiffs, which even at the outset were analogous to the claims of the existing plaintiffs. Surely four months is a reasonable amount of time to investigate hundreds of complaints of discrimination to ultimately determine of the outcries to be appropriate to warrant addition to the complaint. It follows logically that Plaintiffs had no way of knowing of the existence of the new plaintiffs until after the complaint was filed. Following this same logic, Plaintiffs seek leave to add these new plaintiffs after the complaint has been filed, and after a diligent investigation of the new plaintiffs claims has been conducted. It would defy logic were Plaintiffs to have been aware of the new plaintiffs at the time of filing the complaint, and not, by virtue of their then existing knowledge, included the new plaintiffs in the complaint. Because this amendment flows logically and naturally from the complaint, there exists no evidence that Plaintiffs acted with bad faith or dilatory motive.. The Amendment is Not Futile Futility is simply not in issue. If the original Plaintiffs have viable claims, it is very likely the additional claims will as well. Forman, U.S. at ( If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity About 0 families which include a disabled victim contacted the undersigned. If amended, of these families will be Plaintiffs. Page
Case :-cv-0-r-rz Document Filed 0// Page of Page ID #: 0 to test his claim on the merits. ). Accordingly, Plaintiffs should be afforded an opportunity to test their claims on the merits by addition of the new plaintiffs.. No Prior Amendments Plaintiffs have not previously amended a pleading, or sought leave from this Court to amend a pleading.. Statement of Local Rule Compliance Plaintiffs note the following in accordance with Local Rule. At the early meeting of counsel which occurred in person on August,, the undersigned advised Disney of the intention to file suit on behalf of the additional plaintiffs. Disney expressed no position at that time. On Tuesday, August,, the undersigned advised Disney that the new suit for the additional plaintiffs would take the form of an amendment to the instant action. On Thursday, August, Disney advised that such motion would be opposed. Such opposition was reaffirmed on Friday, August, when the parties Joint Report of Early Meeting of Counsel was finalized and filed (Doc. ). III. CONCLUSION Leave to file the proposed Amendment to the Complaint is proper in that Disney faces no undue prejudice, Plaintiffs did not delay in bringing this proposed amendment, there exists no bad faith or dilatory motive, and Plaintiffs have not previously amended any pleadings in this action. Accordingly, Plaintiffs respectfully request this Court grant leave to file their Amendment to the Complaint. Page
Case :-cv-0-r-rz Document Filed 0// Page of Page ID #: 0 CERTIFICATE OF SERVICE The undersigned does hereby certify that a true copy of the foregoing Proof of Service has been electronically filed with the Clerk of the Court pursuant to Local Rule -.and General Order No. 0-0 regarding Electronic Case Filing in the U.S. District Court, Central District of California by using the CM/ECF system which will send a copy of the documents to counsel of record pursuant to Local Rule -.. to: this th day of August,. Rhonda Trotter, Esq. Kaye Scholer LLP Avenue of the Stars, Suite 00 Los Angeles, California 00 rtrotter@kayescholer.com /s/ Andy Dogali ANDY DOGALI Pro Hac Vice adogali@dogalilaw.com Dogali Law Group, P.A. 0 E. Kennedy Blvd., Suite 00 Tampa, Florida 0 Tel: () 000 Fax: () And EUGENE FELDMAN California Bar No. gfeldmanlaw@att.net Eugene Feldman, Attorney at Law, APC Pier Avenue, Suite Hermosa Beach, CA 0 Tel: (0) Fax: (0) Attorneys for Plaintiffs Page